Citation Nr: 0948357
Decision Date: 12/23/09 Archive Date: 01/05/10
DOCKET NO. 06-18 519 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUES
1. Entitlement to service connection for arteriosclerotic
heart disease, to include as secondary to service-connected
disability.
2. Entitlement to a total rating based on individual
unemployability (TDIU) due to service-connected disability.
REPRESENTATION
Appellant represented by: Wisconsin Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
L. J. Wells-Green, Counsel
INTRODUCTION
The Veteran served on active duty from November 1972 to
December 1975.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from August 2005 and April 2006 rating decisions of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Milwaukee, Wisconsin. In November 2008 the Board remanded
the case for further development. The requested development
has been completed and the case has been returned to the
Board for further appellate action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained.
2. Any currently diagnosed arteriosclerotic heart disease
did not have its onset in service or within one year
thereafter and has not been etiologically linked to the
Veteran's service, any incident therein or to his service-
connected disabilities.
3. The Veteran's service-connected disabilities are
posttraumatic stress disorder (PTSD), rated 70 percent
disabling; diabetes mellitus, rated as 20 percent disabling;
peripheral neuropathy of the left and right upper
extremities, each rated as 20 percent disabling, and
peripheral neuropathy of the left and right lower
extremities, each rated as 20 percent disabling. The
combined evaluation is 90 percent.
4. The evidence of record does not show that the Veteran's
service-connected disabilities cause him to be unable to
secure or follow a substantially gainful occupation.
CONCLUSIONS OF LAW
1. Arteriosclerotic heart disease was not incurred in active
military service; cannot be presumed to have been incurred
therein; and is not a result of service-connected disability.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38
C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009).
2. The criteria for the assignment of TDIU due to service-
connected disabilities have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duties To Notify And Assist
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims held, in part,
that a Veterans Claims Assistance Act of 2000 (VCAA) notice,
as required by 38 U.S.C.A. § 5103(a), must be provided to a
claimant before the initial unfavorable RO decision on a
claim for Department of Veterans Affairs (VA) benefits. The
notice must (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; and (3) inform the
claimant about the information and evidence the claimant is
expected to provide. (The Board notes that 38 C.F.R. § 3.159
was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-
56 (Apr. 30, 2008).
Further, upon receipt of an application for a service-
connection claim, VA is required to review the evidence
presented with the claim and to provide the Veteran with
notice of what evidence not previously provided will help
substantiate his/her claim. Dingess v. Nicholson, 19 Vet.
App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b). Specifically, VA must notify the Veteran of what
is required to establish service connection and that a
disability rating and effective date for the award of
benefits will be assigned if service connection is awarded.
In cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the claim for service connection has been
substantiated, and any defect in the notice regarding that
claim was therefore not prejudicial to the claim. See
Dingess, 19 Vet. App. at 491. In such cases, where the
appellant then files a notice of disagreement (NOD) with the
initial rating and/or the effective date assigned, he/she has
initiated the appellate process and different, and in many
respects, more detailed notice obligations arise, the
requirements of which are set forth in sections 7105(d) and
5103A of the statute. Id., see also Goodwin v. Peake, 22
Vet. App. 128 (2008); 38 U.S.C.A. § 5103(A), 7105(d).
In reviewing the Veteran's claim of entitlement to service
connection for arteriosclerotic heart disease, as well as the
claim for TDIU, the Board observes that the RO issued VCAA
notices to the Veteran in March 2005, March 2006, June 2006
and February 2009 letters which informed him of the evidence
generally needed to support claims of entitlement to service
connection; a VCAA notice issued in April 2006 informed him
of the evidence generally needed to support claims of
entitlement to TDIU. All the letters advised him of what
actions he needed to undertake; and how the VA would assist
him in developing his claims. The March 2006 and February
2009 letters informed him of the evidence needed for the
assignment of evaluations and effective dates for initial
awards of service connection. Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006). The March 2005 VCAA notice was
issued prior to the August 2005 rating decision denying his
attempt to reopen the claim for service connection for
arteriosclerotic heart disease and the April 2006 VCAA notice
was issued prior to the April 2006 rating decision denying
his TDIU claim. Thereafter, in a November 2008 decision, the
Board reopened the Veteran's claim for service connection for
arteriosclerotic heart disease and remanded the merits of
claim for further development, as well as the TDIU claim.
The Board finds that, under the facts of this case, "the
record has been fully developed," and "it is difficult to
discern what additional guidance VA could have provided to
the Veteran regarding what further evidence he should submit
to substantiate the claims." Conway v. Principi, 353 F.3d
1369 (Fed. Cir. 2004). Thus, the Board concludes that the RO
provided appropriate notice of the information or evidence
needed in order to substantiate the claims prior to the
initial decisions. In view of this, the Board finds that
VA's duty to notify has been fully satisfied with respect to
these claims.
VA has secured or attempted to secure all relevant
documentation to the extent possible. Service treatment
records, VA medical examination reports and treatment records
are of record, as well as private treatment records and
written statements submitted on the Veteran's behalf, and
were reviewed by both the RO and the Board in connection with
the Veteran's claims.
VA examinations with respect to the issues on appeal were
obtained in July 2005, February 2006, September 2006, and
April 2009. 38 C.F.R. § 3.159(c) (4). To that end, when VA
undertakes to provide a VA examination or obtain a VA
opinion, it must ensure that the examination or opinion is
adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
As noted below, the Board finds that the July 2005 VA
psychiatric, February 2006 psychiatric, and September 2006
neurological examinations obtained in this case are adequate,
as they were predicated on a review of the Veteran's claims
files, medical records and his reported history. In this
case, the Board finds that the July 2005 and February 2006 VA
cardiac examinations were not adequate because it appears
that the July 2005 examiner's and the February 2006
examiner's opinions did not adequately address whether the
Veteran's service-connected PTSD may have aggravated his
diagnosed arteriosclerotic heart disease in their rationales.
However, as a result of the November 2008 remand, the Board
obtained an April 2009 VA examination report providing an
opinion regarding whether the Veteran's diagnosed
arteriosclerotic heart disease is aggravated by his service-
connected PTSD. That opinion was based on a review of the
Veteran's claims files which included his private treatment
records, VA treatment records and complete service treatment
records. The examiner outlined the Veteran's history and
gave an opinion based on the pertinent evidence of record.
Accordingly, the Board finds that VA's duty to assist with
respect to obtaining a VA examination or opinion with respect
to the issues on appeal has been met. 38 C.F.R. § 3.159(c)
(4). Thus, there remains no issue as to the substantial
completeness of the Veteran's claims. 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a)
(2009). Any duty imposed on VA, including the duty to assist
and to provide notification, has been met. Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19
Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328
(Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006); Sanders v. Nicholson, 487 F. 3d (Fed. Cir. 2007).
Analysis
The Veteran and his representative contend that his currently
diagnosed arteriosclerotic heart disease is either the
proximate result of his service-connected PTSD or is
aggravated by such. The Veteran's wife has also alleged that
his service-connected diabetes mellitus either caused or
aggravates his arteriosclerotic heart disease.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. § 1110. That an injury or disease
occurred in service is not enough; there must be chronic
disability resulting from that injury or disease. If there
is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
Some chronic diseases are presumed to have been incurred in
service, although not otherwise established as such, if
manifested to a degree of ten percent or more within one year
of the date of separation from service. 38 U.S.C.A.
§ 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A.
§ 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable
chronic diseases, including arteriosclerosis).
Under section 3.310(a) of VA regulations, service connection
may be established on a secondary basis for a disability
which is proximately due to or the result of service-
connected disease or injury. 38 C.F.R. § 3.310(a).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either (a)
proximately caused by or (b) proximately aggravated by a
service-connected disability. Allen v. Brown, 7 Vet. App.
439, 448 (1995) (en banc). Where a service-connected
disability aggravates a nonservice-connected condition, a
veteran may be compensated for the degree of disability (but
only that degree) over and above the degree of disability
existing prior to the aggravation. Allen, 7 Vet. App. at
448. Temporary or intermittent flare-ups of symptoms of a
condition, alone, do not constitute sufficient evidence of
aggravation unless the underlying condition worsened. Cf.
Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002);
Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
In rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant. See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990). When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the benefit of the doubt
shall be given to the claimant. 38 U.S.C.A. § 5107(b). When
a reasonable doubt arises regarding service origin, such
doubt will be resolved in the favor of the claimant.
Reasonable doubt is doubt which exists because of an
approximate balance of positive and negative evidence which
does not satisfactorily prove or disprove the claim. 38
C.F.R. § 3.102. The question is whether the evidence
supports the claim or is in relative equipoise, with the
claimant prevailing in either event, or whether a fair
preponderance of the evidence is against the claim, in which
event the claim must be denied. See Gilbert, 1 Vet. App. at
54.
Initially, after carefully reviewing all of the evidence of
record, the Board finds that the preponderance of the
evidence of record does not demonstrate that the Veteran's
current arteriosclerotic heart disease had its onset in
service or within one year of his discharge from service in
December 1975. The Board observes that the Veteran's service
treatment records show no relevant complaints, findings,
treatment or diagnoses. VA and private treatment records,
dating from October 1983 to August 2009 show the earliest
competent medical evidence of a diagnosed heart condition is
in a January 1994 VA treatment record noting the Veteran had
a myocardial infarction in 1988, approximately 13 years after
his discharge from service. The Board finds this gap in time
significant, and it weighs against the existence of a link
between the Veteran's current arteriosclerotic heart disease
and his time in service. Cf. Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000) (holding, in an aggravation context,
that the Board may consider a prolonged period without
medical complaint when deciding a claim). Moreover, there is
no competent medical opinion of record etiologically linking
any currently diagnosed heart condition, to include
arteriosclerotic heart disease and coronary artery disease,
to service or any incident therein.
Likewise, although the Veteran and his wife contend that his
service-connected PTSD and/or diabetes mellitus either caused
or aggravates his diagnosed heart condition, the Board finds
that the preponderance of the evidence is against his claim.
While the evidence reveals that he has a current cardiac
diagnosis, most often identified as arteriosclerotic heart
disease or coronary artery disease, the preponderance of the
competent evidence of record does not etiologically link the
Veteran's heart condition to his service or to his service-
connected PTSD or diabetes mellitus.
In this respect, the Board acknowledges the opinion of the
Veteran's wife, a registered nurse, that the Veteran's PTSD
symptoms directly and/or indirectly either caused his heart
condition or aggravate it. She also opines that his service-
connected diabetes mellitus contributes to his heart
condition. However, the Board finds more probative the July
2005 VA examiner's opinion and August 2005 addendum,
specifically finding that the Veteran's diabetes, diagnosed
10 years after his coronary artery disease, did not cause or
aggravate such disease, as there had been no significant
increase in his symptoms since the onset of his diabetes and
that his PTSD had neither caused nor aggravated his heart
condition; a February 2006 VA general medical examiner's
opinion, specifically finding that the Veteran's
arteriosclerotic heart disease was unrelated to his service-
connected PTSD and preceded the onset of his service-
connected diabetes with no evidence of progression since
development of diabetes; and the April 2009 VA cardiology
examiner's opinion that his coronary artery disease was not
due to his PTSD, and that it was not aggravated by his PTSD
symptoms. In this regard, the July 2005, February 2006 and
April 2009 medical opinions are more persuasive as the
examiners indicate that they reviewed the Veteran's records
(July 2005) and/or claims files (February 2006 and April
2009) in conjunction with the examinations. Moreover, both
the February 2006 and April 2009 VA examiners are physicians,
and while the July 2005 VA examiner is a nurse-practitioner,
a physician also signed off on the examination report and the
opinion in the addendum. Further, all three examiners
offered rational bases for their conclusions and all
attributed the Veteran's heart condition to his long history
of heavy tobacco use and hyperlipidemia. Although the July
2005 examiner also associated the Veteran's heart disease to
his long history of alcohol abuse, later associated with his
PTSD, the later two examiners did not. The April 2009
examiner also attributed his coronary artery disease to a
strong family history, noting that both parents suffered
"premature" coronary artery disease. The examiner further
specifically noted that while the Veteran's PTSD was one
factor that made his coronary artery disease symptomatic, it
did not aggravate it as it did not cause progression of the
underlying coronary artery disease.
In contrast, although the Veteran's wife is a registered
nurse and therefore has the expertise that an average lay
person would not have regarding medical observations, there
is nothing in the record that supports a conclusion that her
observations should outweigh those of the at least 2 VA
physician examiners and a nurse-practitioner. The evidence
of record indicates that she is a labor and delivery nurse
and there is no evidence that she has specialized knowledge
in either cardiology or psychiatry. See Black v. Brown, 10
Vet. App. 297, 284 (1997) (in evaluating the probative value
of medical statements, the Board looks at factors such as the
individual knowledge and skill in analyzing the medical
data). Moreover, although the Veteran's wife does address
the Veteran's other risk factors, such as hyperlipidemia and
his long history of smoking, she also attributes these
factors to his PTSD without providing any supporting
objective medical evidence or more than cursory rationales
for her conclusions. Finally, the Board finds the objective
observations of the disinterested VA medical professionals to
be more probative than the opinion of the Veteran's wife.
For these reasons, the Board assigns more probative value to
the July 2005, February 2006 and April 2009 VA examiners'
findings and conclusions than it does to the opinion of the
Veteran's wife, a registered nurse. Evans v. West, 12 Vet.
App. 22, 26 (1998); Winsett v. West, 11 Vet. App. 420 (1998),
aff'd 217 F.3d 845 (Fed. Cir. 1999) (unpublished decision),
cert. denied 120 S.Ct.1251 (2000) (it is not error for the
Board to value one medical opinion over another, so long as a
rationale basis for doing so is given).
Although the Veteran believes his currently diagnosed
arteriosclerotic heart disease is secondary to his service-
connected PTSD, he is not competent to provide evidence that
requires medical knowledge. See Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492
(1992). Accordingly, the claim for service connection for
arteriosclerotic heart disease must be denied.
TDIU
Total disability will be considered to exist when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. § 3.340. If the
total rating is based on a disability or combination of
disabilities for which the Schedule for Rating Disabilities
provides an evaluation of less than 100 percent, it must be
determined that the service-connected disabilities are
sufficient to produce unemployability without regard to
advancing age. 38 C.F.R. § 3.341. In evaluating total
disability, full consideration must be given to unusual
physical or mental effects in individual cases, to peculiar
effects of occupational activities, to defects in physical or
mental endowment preventing the usual amount of success in
overcoming the handicap of disability and to the effects of
combinations of disability. 38 C.F.R. § 4.15 (2009).
If the schedular rating is less than total, a total
disability evaluation can be assigned based on individual
unemployability if the veteran is unable to secure or follow
a substantially gainful occupation as a result of service-
connected disability, provided that he has one service-
connected disability rated at 60 percent or higher; or two or
more service-connected disabilities, with one disability
rated at 40 percent or higher and the combined rating is 70
percent or higher. The existence or degree of non-service
connected disabilities will be disregarded if the above-
stated percentage requirements are met and the evaluator
determines that the veteran's service-connected disabilities
render him incapable of substantial gainful employment. 38
C.F.R. § 4.16(a). All veterans who are shown to be unable to
secure and follow a substantially gainful occupation by
reason of service-connected disability shall be rated totally
disabled. 38 C.F.R. § 4.16(b). In cases where the schedular
criteria are not met, an extraschedular rating is for
consideration. 38 C.F.R. § 3.321.
Marginal employment shall not be considered substantially
gainful employment. For purposes of 38 C.F.R. § 4.16,
marginal employment generally shall be deemed to exist when a
veteran's earned annual income does not exceed the amount
established by the U.S. Department of Commerce as the poverty
threshold for one person. Marginal employment may also be
held to exist, on a facts found basis (includes but is not
limited to employment in a protected environment such as a
family business or sheltered workshop), when earned annual
income exceeds the poverty threshold. Consideration shall be
given in all claims to the nature of the employment and the
reason for termination. 38 C.F.R. § 4.16(a).
As noted above, the Veteran's service-connected disabilities
are posttraumatic stress disorder (PTSD), rated 70 percent
disabling; diabetes mellitus, rated as 20 percent disabling;
peripheral neuropathy of the left and right upper
extremities, each rated as 20 percent disabling, and
peripheral neuropathy of the left and right lower
extremities, each rated as 20 percent disabling. The
combined evaluation is 90 percent. Thus, his service-
connected disabilities meet the schedular criteria for a TDIU
rating (i.e. that a veteran must have one service-connected
disability rated at 60 percent or higher or two or more
service-connected disabilities, with one disability rated at
40 percent or higher, with a combined rating of 70 percent or
higher) under the provisions of 38 C.F.R. § 4.16(a).
However, after carefully reviewing the evidence of record,
the Board concludes that the preponderance of the evidence
does not demonstrate that the Veteran's service-connected
disabilities, disregarding his nonservice-connected
disabilities or previous unemployability, render him unable
to secure or follow a substantially gainful occupation. In
this regard, the Board notes that several treatment records
show the Veteran was unable to work as a result of his
nonservice-connected heart condition. A July 1994 VA
treatment record shows the Veteran had diagnosed coronary
artery disease and pulmonary fibrosis and a physician's
statement that he was totally and permanently disabled and
unable to work. Moreover, the February 2006 VA psychiatric
examiner opines that despite the Veteran's mental health
symptoms and his moderate/severe PTSD, his mental health does
not render him unemployable. The examiner further notes that
the Veteran and his wife both stated that he could no longer
drive truck or perform other sedentary jobs because of
medical and other physical problems. Medical evidence of
record indicates that the Veteran's diabetes is well-
controlled with medication and a February 2006 VA general
medical examination report shows that, while early diabetic
peripheral neuropathy of the lower extremities was diagnosed,
physical examination revealed no sensory abnormalities of
either hand and examination of the feet revealed the reflexes
to be intact and vibratory sensation to be normal.
Monofilament testing was also essentially normal. A
September 2006 VA examination report also shows that sensory
testing of the hands was normal with no evidence for
sustained sensory deficit. Finally, there is no medical
evidence of record indicating that the Veteran would be
completely precluded from employment as a result of his
service-connected disabilities alone. The Board finds the
record does not demonstrate that the Veteran's service-
connected disabilities alone, without consideration of his
non-service-connected disabilities, are of such severity as
to solely preclude his participation in all forms of
substantially gainful employment. Although the Veteran's
service-connected disabilities meet the schedular criteria
for disability percentages for a TDIU under the provisions of
38 C.F.R. § 4.16(a), the evidence fails to show that these
disabilities, disregarding his nonservice-connected
disabilities, render him unemployable, the second criteria
for a TDIU under 38 C.F.R. § 4.16(a). Accordingly, a total
disability rating based upon individual unemployability due
to service-connected disabilities under the provisions of 38
C.F.R. § 4.16(a) is not warranted.
As the preponderance of the evidence is against this claim,
the benefit-of-the-doubt doctrine does not apply. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49, 55-
57 (1990).
ORDER
Service connection for arteriosclerotic heart disease is
denied.
Entitlement to a TDIU is denied.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs